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Employment and Support Allowance

If you have 'limited capability for work' you can generally claim Employment and Support Allowance (ESA) rather than Jobseekers Allowance. However, new rules from 28th March 2011 seem to mean that (lack of) speech alone cannot entitle a person to ESA, nor earn one points towards it.

Summary

Those with sufficiently severe disabilities claim Employment and Support Allowance (ESA) rather than Jobseekers Allowance. Many ESA claimants will, however, have work-focussed interviews.

ESA is now likely to be relevant to stammering, if at all, only in exceptional circumstances:

The new rules on speech (from March 2011) apply also to existing ESA claimants, as well as those being re-assessed for possible migration onto ESA from older benefits.

My comment: It is unclear why it is much easier to claim ESA on the basis of difficulty in understanding than it is on the basis of difficulty communication outwards, ie speaking or or writing. Difficulty in either hearing speech or reading print may be taken into account in claiming ESA. See www.disabilityalliance.org/esavisual.htm.

Outline of ESA

If you are unemployed and have 'limited capability for work' (as outlined below), you will generally claim Employment and Support Allowance (ESA) instead of Jobseekers Allowance (JSA). ESA is

ESA has been in effect for new claims from 27th October 2008, replacing both incapacity benefit and 'income support on the basis of incapacity'. People on those benefits, or on severe disablement allowance, remain on them until re-assessed as to whether they are eligible to move onto ESA or, instead, should switch to Jobseekers Allowance.

In general you are not entitled to ESA in any week in which you work, but there are exceptions. Many people on ESA go into the 'work-related activity group' and are required to have work-focussed interviews. This does not apply to those with the most severe disabilities, who go into the 'support group' and receive higher payments.

A person who is entitled to ESA and has paid sufficient National Insurance contributions gets 'contributory' ESA, which is not means-tested. From April 2012, contributory ESA for those in the 'work-related activity group' is limited to one year. For new claims, it is no longer possible for young adults to get contributory ESA without payment of National Insurance contributions (sometimes called 'youth ESA').

A person who is entitled to ESA but not to 'contributory ESA' gets 'income-related' ESA. Income-related ESA is means-tested and tops up your income to a basic minimum, called your 'applicable amount'. So ESA is means-tested if one does not have sufficient contributions to claim contributory ESA, and in any event after a person's one year on contributory ESA runs out (assuming the person is still entitled to ESA).

Rules on speech

The medical test for entitlement to ESA is called the 'limited capability for work' test. To pass this, you normally need to get 15 points based on limitations on your ability to carry out various activities. There is a list of activities and points (in the regulations linked below). For each activity you take the highest score (if any) that applies, add together the scores from different activities if you score for more than one, and see if they come to at least 15.

Under the rules before March 2011, you could get these 15 points on the basis of the 'Speech' activity alone if you "cannot speak at all" or if your "speech cannot be understood by strangers". This was a very tough test, which very few who stammer would meet. If your speech difficulty was not severe enough to meet that test, it might entitle you to a lesser number of points, and you might possibly be able to make these up to 15 through limitations in other activities listed.

However, since March 2011 there is no 'Speech' activity in the medical test. Activity 6 (in Schedule 2 of the regulations) is now "Making self understood through speaking, writing, typing, or other means normally used, unaided by another person." It seems the fact that one's speech cannot be understood no longer scores points if, instead, one is able to make oneself understood by writing, typing or 'other means normally used', unaided by another person.

To get 15 points, and so qualify for ESA on that basis alone, the requirements are that (using writing if necessary) one "Cannot convey a simple message, such as the presence of a hazard" or "Has significant difficulty conveying a simple message to strangers." "Has some difficulty conveying a simple message to strangers." is 6 points.

A Revised WCA Handbook (pdf, link to dwp.gov.uk) gives guidance for doctors on the new rules. 'Making self understood' is dealt with at paragraph 3.2.8 (also para 2.3.1.6). This says that the concept of communicating a message such as a hazard is hypothetical and the immediate availability of a PC/Pen and paper to write a message would not be considered: "Those with significant communication problems are likely to carry items such as a pen/paper to ensure they can communicate."

Other activities, including 'social contact'

Activity 16 in the new Schedule 2 is one that may still be relevant in connection with a stammering 'syndrome': "Coping with social engagement due to cognitive impairment or mental disorder" (considered in para 3.5.7 of the Revised WCA Handbook, and para 2.3.1.14). However to gain the required 15 points on the basis of Activity 16 alone, it needs to be the case that "Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual.", even with people familiar to the claimant. So the test is a very tough one. Lesser amounts of points may be available for a lesser degree of social phobia.

Limitations in other types of activity falling within the regulations may be relevant in individual cases.

Substantial risk to health

Even if a claimant does not pass the normal limited capability for work test, the claimant is still to be treated as having limited capablity for work if:

CF v Secretary of State for Work and Pensions (link to bailii.org) [2012], Upper Tribunal (Administrative Appeals Chamber)
The appeal tribunal discussed previous cases on this test. To determine whether there was any health risk at work or in the work place, it is necessary to make some assessment of the type of work for which the claimant is suitable. The journey into work could also be relevant. So could a risk from having to seek work (having been found capable for work), eg the effect on mental health of fruitless and repeated interviews and the possibly hopeless pursuit of jobs.

Links on the revised medical test

Changes to ESA

More information on ESA

More on the Employment and support allowance:

For further information, including finding someone to help, see Further Information.

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Last updated 8th December, 2012